Last month the main Hollywood studios approached CyberBunker operator CB3ROB and demanded that they should stop providing The Pirate Bay with bandwidth. Failure to comply would result in the MPA taking legal action against CB3ROB in Germany.
This week we exclusively revealed that Columbia Pictures, Disney Enterprises, Paramount Pictures,Twentieth Century Fox, Universal, and Warner Bros. had obtained a preliminary injunction against CB3ROB Ltd from the Regional Court of Hamburg.
The injunction, which was granted without an oral hearing, stated that CB3ROB Ltd. & Co. KG and Managing Director Sven Olaf Kamphuis were now prohibited from connecting The Pirate Bay website and its servers to the Internet.
Following requests from news outlets around the world, TorrentFreak has worked to obtain a copy of the injunction which we can now publish (In German). Below follows an English translation.
Pages 1 and 2
Landgericht Hamburg, 10th Civil Chamber
310 O 154/10
Order of May 6th 2010
In the matter of
[Plaintiffs]
1) Columbia Pictures Industries Inc.
2) Disney Enterprises Inc.
3) Paramount Pictures Corporation
4) Twentieth Century Fox Film Corporation
5) Universal City Studios Productions
6) Warner Bros. Entertainment Inc.
Legal representatives for 1-6 : Anwaltssozietät Boehmert & Boehmert, Meinekestr. 26 D-10719 Berlin, Gz: MPA60057
versus
[Defendants]
1. CB3ROB Ltd. & Co. KG, represented by CB3ROB Ltd., in turn represented by its Managing Director Sven Olaf Kamphuis, Koloniestraße 34, D-13359 Berlin
2. Mr. Sven Olaf Kamphuis, Koloniestraße 34, D-13359 Berlin
In the Regional Court of Hamburg, 10th Civil Chamber, case handled by Judge Steeneck, Judge Wandel and Judge Harders.
Page 3
I. By means of a Preliminary Injunction Order – given the urgency of the matter granted without an oral hearing – the Defendants, on pain of a fine to be fixed by the Court for each case of infringement and, in the event that the fine cannot be enforced, imprisonment or imprisonment of up to 6 months (maximum fine for each case: 250,000 euros; maximum term of imprisonment 2 years, to be levied on the respective managing directors of the General Partner of Defendant 1 and Defendant 2 personally)
Defendants are prohibited from connecting the website “The Pirate Bay” (available in
particular on thepiratebay.org, piratebay.org, piratebay.net, thepiratebay.com, thepirate-bay.net, piratebay.se) and its servers to the Internet, insofar that torrent files are made available on this server which enable Internet users to download the following movies:
The Bounty Hunter (in favor of Plaintiff 1)
Alice in Wonderland (in favor of Plaintiff 2)
Our Family Wedding (in favor of Plaintiff 4)
Green Zone (in favor of Plaintiff 5)
Repo Men (in favor of Plaintiff 5)
Cop Out (in favor of Plaintiff 6)
II. The Defendants bear 86% and Plaintiff 3 bears 14% of the court fees. The Defendants bear the attorney fees of Plaintiffs 1, 2, 4, 5 and 6. Plaintiff 3 bears its own attorney fees.
III. The value of the dispute amounts to 290,000 euros.
Page 4
Grounds:
The order is procedurally founded on §§ 935 et seq., 922 Code of Civil Procedure and the Court’s competence to decide on the case follows the § 32 Code of Civil Procedure. The injunction claims are founded pursuant to §§ 97, 94, 15, 19 et seq. of the Copyright Act. The pain of penalties and fines follow § 890 of the Code of Civil Procedure.
1.
Plaintiffs 1, 2 and 4 to 6 have shown and provided evidence, also upon consideration of the pre-trial arguments put forward by the Defendants, for all facts required for granting the injunction against the Defendants pursuant to § 97 (1) of the Copyright Act.
Upon presentation of affidavits Plaintiffs have provided evidence that they own all exploitation rights to the following movies:
Plaintiff 1 – “The Bounty Hunter”
Plaintiff 2 – “Alice in Wonderland”
Plaintiff 4 – “Our Family Wedding”
Plaintiff 5 – “Green Zone”
Plaintiff 5 – “Repo Men”
Plaintiff 6 – “Cop Out“
Page 5
Plaintiffs also provided evidence that files containing these movies have been made available on The Pirate Bay website [IP Address: 194.71.107.15] and could be downloaded. This constitutes an act of making available of the movies to the public under §§ 15, 19a, 94 et seq. Copyright Act, an act reserved by the Plaintiffs. As this occurred without the authorization of the Plaintiffs, such acts were unlawful.
Defendants are liable for these infringements pursuant to the “Störerhaftung” principle. Following warning notices from the Plaintiffs, they were able and could be reasonably expected to prevent the accessibility of the websites containing the copyright infringing content. Defendants cannot rely upon the liability privileges of Article 8 of the Tele Media Act because this provision is not applicable to injunction claims.
The unlawful use attributable to the Defendants caused the risk of further infringements. To overcome this risk, Defendants – apart from discontinuing such use – had been required to submit an implicit, serious and timely unlimited cease-and-desist declaration under penalty of law. Defendants did not submit such declaration upon Plaintiffs’ request.
There are sufficient grounds for the injunction order. This follows from the danger or risk of repetition. Besides, Plaintiffs themselves have handled the matter for the relevant film works quickly enough.
Page 6
2.
The decision on costs is founded on §§ 91 (1), 92 (2) No.1, 269 (3) s.1 Code on Civil Procedure. The value of the dispute has been estimated pursuant to § 53 Act on Court Fees, § 3 Code on Civil Procedure.
— End of translation —
Speaking with TorrentFreak earlier in the week, CB3ROB’s Sven Kamphuis said that he had yet to receive a copy of the injunction, but maintained that his company’s standpoint on the situation is very clear and remains unchanged.
“In fact, those standpoints have been re-assured by the ‘Rapidshare verdict‘ (also in Germany) a couple of weeks ago,” Kamphuis told us.
“The Pirate Bay is a search engine for torrent files, BitTorrent is a universal file distribution protocol, just like any other means of transporting files over a network. The Pirate Bay does not ‘facilitate’ copyright infringement, nor do we. The PirateBay ‘facilitates’ transporting files over a network, and we facilitate Internet connectivity,” he continued.
“If anyone is to blame for seeders not having a distribution license for any potential copyrighted content, it’s the copyright industry’s management. (can you spell ‘unfair competition’, o hai, meet the European Commission),” he added.
Kamphuis further noted that shutting down The Pirate Bay would constitute censorship, an act which he says is illegal under German law and would infringe upon the rights of millions of legitimate users.
Since only a handful of movies are listed in the injunction, removing torrents connected to those could achieve Hollywood’s requirements, but Kamphuis says that act is out of his control.
“Now don’t get me wrong, I’m all for removing MPA content, as it’s crap anyway, and gives free promotion to criminal cartels that corrupt our governments, engage in unfair competition, and act [with hostility] against ISPs [which] is not the way to go, but as we believe in an open Internet, we’ll even let them stay around for a while,” he adds.
“As for ‘removing (their not so very specific list of) torrents’, we have no influence on that anyway. They can sort that one out in court against Reservella, as they will, within a few months.”
Kamphuis told us that getting an injunction isn’t too difficult and that his company will consider getting a few of their own, such as one which forbids Disney from sending information packets over their infrastructure.
At this point it remains unclear if CB3ROB have officially received a copy of the injunction but in any event, The Pirate Bay remains fully operational to this day.
Update: CB3ROB have received the injunction.
“We will continue the fight in a normal court procedure, as of course, we cannot agree to this as it undermines the entire internet industry’s business model,” Kamphuis told TorrentFreak.
